General Terms and Conditions

Preamble

ADFERENCE GmbH, Auf der Hude 74, 21339 Lüneburg (hereinafter referred to as: “ADFERENCE”) provides various online services to companies (hereinafter referred to as: “ADFERENCE Service”).

1. Subject Matter of the Agreement

These General Terms and Conditions (hereinafter referred to as: “GTC”) apply to the agreement concluded between ADFERENCE and the customer regarding the use of the ADFERENCE Services.

The ADFERENCE Services may include, but are not limited to, the following services:
- ADFERENCE for Amazon (management and optimization of advertising campaigns on Amazon);
- ADFERENCE CSS (operation of a price comparison portal within the scope of the Google CSS Program, through which customer product data (product ads) are displayed. ADFERENCE does not guarantee the full or partial permanent existence of the Google CSS Program or its terms of use and is not responsible for it. ADFERENCE ensures that the steering is guaranteed, among other things, in DE, AT, CH, FR, NL, BE, and IT for the term of the agreement. Should the terms of the Google CSS Program be significantly changed, ADFERENCE has the right to migrate the customer back to Google Shopping Europe.)
- Support services (including service provisions, a fee-based onboarding session, etc.) and other contractually specified services.

The specific and definitive scope of the services to be provided by ADFERENCE is agreed upon in a separate individual agreement (“Service Agreement”) between the parties, which supplements and extends the provisions of these GTC.

The ADFERENCE Services are exclusively for entrepreneurs (§14 BGB [German Civil Code]), i.e., natural and legal persons who act in the exercise of their commercial or independent professional activity when concluding the contract (hereinafter referred to as: “Customers”). They therefore do not apply to consumers within the meaning of §13 BGB. Before concluding the contract, ADFERENCE may require the customer to provide sufficient proof of their entrepreneurial status, e.g., by providing their VAT ID number or other suitable evidence. The data required for proof must be provided completely and truthfully by the customer.

1.2. By concluding the contract, the customer accepts the GTC in the version valid at the time of conclusion. The GTC can be accessed at any time on the ADFERENCE website.

1.3. ADFERENCE reserves the right to amend these GTC and the subject matter of the ADFERENCE Services at any time, provided this is necessary, particularly due to a change in legal status, technical changes, or further developments or other equivalent reasons, and does not unreasonably disadvantage the customer. Amendments to the GTC will be communicated to the customer in writing or by email at least four (4) weeks before they take effect. The amendments become effective if the customer does not object in writing or by email within a period of four (4) weeks after receipt of the notification of amendment and ADFERENCE has informed the customer of this legal consequence in the notification of amendment. Otherwise, amendments require the express consent of the customer. For services provided free of charge, ADFERENCE is entitled at any time to amend, repeal, or replace the GTC with other GTC, as well as to make new services available free of charge or for a fee.

1.4. Deviating or conflicting general terms and conditions of the customer do not become part of the contract. This also applies if ADFERENCE has not expressly objected to them or accepts services from the customer without reservation, with knowledge of deviating or conflicting general terms and conditions.

2. Conclusion of the Agreement

2.1. A binding contract for the use of the ADFERENCE Service between ADFERENCE and the customer is concluded either by mutual signing of a contract document or - in the case of online offers - by completing an electronic ordering process (e.g., via a website) and corresponding acceptance by ADFERENCE.

2.2. We expressly point out that there is no statutory right of withdrawal for contracts concluded by entrepreneurs (see Section 1.1).

3. Subject Matter of the Contract

3.1. The subject matter of the contract is the provision of access to the respective ADFERENCE Service for a fee and for the duration of the contract.

3.2. The contract itself specifies which ADFERENCE Service is to be used and which contents are the subject of the contract. The exact definition of the ADFERENCE Service (in particular the scope of services) and thus the subject matter of the contract can be found in the service description separately signed between the parties.

3.3. The use of the ADFERENCE Services expressly offers only support, but not a guarantee or warranty for achieving the customer's goals. In particular, ADFERENCE is not obligated, for example, to deliver a minimum number of clicks or conversions, to adhere to a customer-specified average Cost-per-Click (“CPC”) or Advertising Cost of Sales (“ACoS”), to exhaust a customer-specified budget, or similar. Due to the dynamics and unforeseeable developments of the market and advertising environment, ADFERENCE is expressly not liable for the occurrence of certain economic successes or the achievement of goals defined by the customer—even if ADFERENCE assists with setup or optimizations as part of commissioned services. The customer makes all customer-specific settings offered by the ADFERENCE Service themselves and is therefore responsible for the success or development of their advertising campaigns.

3.4. The ADFERENCE Service is available for use 24 hours a day, 365 days a year. ADFERENCE guarantees an availability of the ADFERENCE Service of 99% on an annual average. If maintenance work is required and the ADFERENCE Service is therefore unavailable, ADFERENCE will inform the customer in advance if possible. Outages of the ADFERENCE Service due to maintenance work are not counted towards the guaranteed availability. ADFERENCE is not responsible for internet/network-related downtimes and, in particular, not for downtimes during which the hardware and software cannot be reached via the internet due to technical or other problems that are beyond the control of ADFERENCE (e.g., force majeure, fault of third parties, etc.).

Excluded from this are the support services offered by ADFERENCE in addition to the ADFERENCE Service, which include support from the support team, technical and user support, online meetings, and direct contact persons for the account. These may vary depending on the contractually agreed-upon scope. The services are available to the customer by prior appointment or during regular business hours.

4. Access to the ADFERENCE Service and Customer's Obligations in this Regard

4.1. The data requested by ADFERENCE upon conclusion of the contract must be provided or transmitted completely and correctly, e.g., first and last name, current address and telephone number, if applicable also a current commercial register extract or valid trade license requested by ADFERENCE, a valid email address, the company name, and the name of an authorized representative. In the event of a change in the data provided after the conclusion of the contract, the customer is obliged to inform ADFERENCE of the change in the corresponding details without delay.

4.2. The customer is responsible for keeping personal access data confidential and must prevent its misuse. The customer ensures to ADFERENCE that the other users designated by them keep their personal access data confidential and prevent its misuse. The transfer of access data to unauthorized third parties is considered misuse. If the customer becomes aware of any misuse of access data, ADFERENCE must be informed immediately by email to support@adference.com. ADFERENCE is entitled to block the access data immediately if misuse occurs. The customer is liable for any misuse for which they or a user designated by them are responsible.

4.3. Depending on the booked service package, the customer undertakes to provide ADFERENCE with the necessary access to their third-party accounts (e.g., Amazon Seller Accounts or Google Merchant Center) and to establish the necessary links with the ADFERENCE Services.

Without a corresponding link, ADFERENCE is not obligated to provide the respective services. The contractually agreed-upon base fee and any flat-rate or usage-independent remuneration remain unaffected. The customer assumes liability for any effects of a missing or incorrect link.

4.4. The technical solution for using the ADFERENCE tool (“ADFERENCE TOOL”) is compatible with the common version of Google Chrome on a desktop operating system. Other browsers or mobile devices are not supported. The customer acknowledges that they will only achieve optimal performance and higher speed of the ADFERENCE Service with the always current version of this browser on their desktop operating system and that outdated versions may lead to delayed performance. The customer is responsible for ensuring that they have the technical prerequisites for accessing the ADFERENCE Services, particularly with regard to the hardware used, the operating system, the connection to the internet, and the browser software, taking into account any technical specifications provided by ADFERENCE.

4.5. Insofar as the customer transmits data to a Google Ads account or an Amazon Ads account to which ADFERENCE has access, the customer is obliged to create backup copies of this data on their own data carriers before transmission. The customer is responsible for ensuring the availability of the required data. In the event of data loss, the customer will transfer the relevant data again free of charge to the Google account or Amazon account to which ADFERENCE has access. The ADFERENCE Services are not designed for the permanent storage or archiving of data and may therefore not be used for this purpose. ADFERENCE does not process personal data on behalf of the customer.

4.6. Upon termination of the contract, the customer is obligated to completely unlink all third-party accounts linked to ADFERENCE within 14 calendar days or to grant ADFERENCE the necessary administrative access rights to do so.

Assignment of Liability in the Event of Failure to Cooperate: Upon termination of the contract, the customer undertakes to comply with their duty to cooperate, for example, to unlink the CSS connection. In the event of a lack of cooperation, the customer agrees to the assignment of liability and grants ADFERENCE permission to access the Google Merchant Center account connected to CSS. Furthermore, ADFERENCE is permitted to make the necessary changes in the account and approve the unlinking process. The customer hereby assumes responsibility for possible effects that these changes could have on the account, including the effects on campaign performance or spending.

4.6. Bei Vertragsbeendigung ist der Kunde verpflichtet, sämtliche mit ADFERENCE verknüpften Drittanbieter-Accounts innerhalb von 14 Kalendertagen vollständig zu entknüpfen oder ADFERENCE die hierzu erforderlichen administrativen Zugriffsrechte zu gewähren.

Haftungsabtretung bei fehlender Mitwirkungspflicht: Mit Vertragsbeendigung verpflichtet sich der Kunde, seinen Mitwirkungspflichten nachzukommen, um bspw. die CSS-Anbindung zu entknüpfen. Bei ausbleibender Mitwirkung stimmt der Kunde der Haftungsabtretung zu und erteilt ADFERENCE die Genehmigung, Zugang zum Google-Merchant Center-Konto, welches mit CSS verbunden ist, zu erhalten. Im Weiteren ist es ADFERENCE gestattet, in dem Konto die notwendigen Änderungen vorzunehmen und den Prozess der Entknüpfung zu genehmigen. Der Kunde übernimmt hierbei die Verantwortung für mögliche Auswirkungen, die diese Änderungen auf das Konto haben könnten, einschließlich der Auswirkungen von Kampagnenleistungen oder Ausgaben.

5. Rights of Use

5.1. For the duration of the contract, ADFERENCE grants the customer a fee-based, non-exclusive (simple), non-transferable, and non-sublicensable right to use the contractually agreed-upon ADFERENCE Service for its intended purpose online via the internet by the users covered by the contract. The customer has no right to be provided with copies of the ADFERENCE software or other materials required for the ADFERENCE Service. All copyrights and other rights to any content of the ADFERENCE Services and in particular the ADFERENCE tool used for this purpose are reserved.

5.2. Only the customer, their legal representative, and their employees are authorized to use the service. In principle, only one concurrent user is authorized; use by multiple concurrent users may impair the usability of the ADFERENCE Service and is therefore not permitted. ADFERENCE reserves the right to require the customer to name the authorized legal representatives and employees, to whom the use of the ADFERENCE Service is then restricted.

5.3. The customer grants ADFERENCE all necessary and geographically unrestricted rights of use in a simple form for the duration of this contract, plus an additional six months after the end of the contract to ensure an appropriate wind-down period, to the content provided within the scope of using ADFERENCE-CSS (control of Google Ads ads via Google Comparison Shopping Services or Price Comparison Service [shortened to “CSS”]), e.g., product images, product texts, etc. The customer also grants ADFERENCE the right to edit the provided content for the purpose of creating product presentations, in particular to redesign, shorten, supplement, or combine it with other content. ADFERENCE is also granted the right to sublicense and/or transfer the rights of use transferred by the customer to cooperation partners and/or third parties for the purpose of fulfilling the contract.

5.4. The customer guarantees that the publication and disclosure of the content by ADFERENCE does not conflict with any third-party property rights. In particular, the customer warrants that all spatially and temporally unrestricted rights of use and exploitation (including the right to portraiture) have been granted to them for transmitted product images and other works protected by copyright and that, if applicable, a valid waiver of the right to be named as the author exists. The customer undertakes to indemnify ADFERENCE upon first request from any claims by third parties due to infringements of property rights through the use of the content provided by the customer and to compensate for any damage resulting therefrom—including the costs of any necessary legal defense based on the respectively applicable statutory remuneration and/or cost regulations (e.g., RVG, GKG). In the event of a warning from third parties due to competition and/or copyright and/or other reasons, ADFERENCE is entitled to issue corresponding declarations of cessation and to immediately block or remove allegedly infringing content, product presentations, or links from portals until the matter is legally clarified. The customer also undertakes to compensate ADFERENCE for the costs incurred by a warning and the necessary deletion from the portal. Furthermore, the customer is responsible for any lost revenue on the part of ADFERENCE as a result, until the contractual relationship is terminated.

Regardless of the aforementioned measures, each party is entitled to take appropriate and suitable measures in its own name, coordinated with the other party. Insofar as one party initiates legal proceedings, the other may be entitled to participate in these proceedings, provided that no other legal reasons prevent this.

6. Warranty

6.1. Beyond the availability of the ADFERENCE Services mentioned in Section 3.4, ADFERENCE only warrants that the respective ADFERENCE Service can, in principle, be used by the customer for the purposes stated in the service description (i.e., that the suitability for the contractual use is neither suspended nor reduced). An insignificant restriction of suitability is disregarded.

6.2. The customer must report any defects, disruptions, or damage to ADFERENCE without delay.

6.3. ADFERENCE will remedy defects after receiving a written, comprehensible description of the defect from the customer within a reasonable period.

6.4. The customer's right to terminate due to non-granting of use according to §543 Para. 2 No. 1 BGB only exists if the defect is not remedied within a reasonable period or is to be considered as having failed.

6.5. The customer's right to claim damages in other respects, provided the statutory conditions are met in accordance with the provisions in the following Section 7, remains unaffected.

7. Liability

7.1. ADFERENCE is liable without limitation within the framework of the statutory provisions for damages in each case:

- from injury to life, body, or health, which are based on an intentional or negligent breach of duty or otherwise on intentional or negligent behavior by ADFERENCE or one of its legal representatives or vicarious agents;
- due to the absence or loss of a guaranteed characteristic or in the event of non-compliance with a guarantee;
-that are based on an intentional or grossly negligent breach of duty or otherwise on intentional or grossly negligent behavior by ADFERENCE or one of its legal representatives or vicarious agents.

7.2. ADFERENCE is liable, limited to compensation for the foreseeable damage typical for the contract, for such damages that are based on a slightly negligent breach of essential obligations by the licensor or one of its legal representatives or vicarious agents. Essential obligations are obligations the fulfillment of which enables the proper execution of the contract in the first place and on the observance of which the customer may rely.

7 .3. The no-fault liability of ADFERENCE according to §536a Para. 1, 1st alternative BGB for defects that already existed at the time of the conclusion of the contract is excluded.

7.4. In the event of data loss caused by simple negligence, ADFERENCE is only liable for the damage that would have occurred even with proper and regular data backup by the customer appropriate to the importance of the data; this limitation does not apply if the data backup was hindered or impossible for reasons for which the licensor is responsible.

7.5. The above provisions also apply mutatis mutandis to the liability of ADFERENCE with regard to the reimbursement of futile expenses.

7.6. Any liability under the Product Liability Act remains unaffected.

8. Remuneration and Billing

8.1. Subject to other written agreements between the parties, the prices of ADFERENCE valid at the time of contract conclusion, which can be accessed at www.adference.com, apply.

8.2. Unless otherwise agreed, the monthly base remuneration is due in advance, and if a variable monthly remuneration has been agreed upon, it is due retrospectively at the end of the calendar month concerned. If the contract does not begin or end at the beginning or end of a calendar month, the base remuneration is to be paid pro rata temporis. Unless otherwise agreed, a basic payment term of 14 days from the date of invoicing applies.

If a monthly variable remuneration has been agreed upon, the underlying data is fixed by ADFERENCE at the time of billing and is not changed retrospectively. If ADFERENCE determines that there is a significant and verifiable data transmission error, ADFERENCE reserves the right to issue correction invoices within three months.

8.3. All stated remunerations and prices are exclusive of the respectively legally owed value-added tax, unless it has already been shown.

8.4. ADFERENCE reserves the right to adjust the prices stated in the contract from time to time at its reasonable discretion, but at the earliest after twelve (12) months of the contract term, insofar as this is necessary to fully offset sustainable cost increases relevant for the calculation of the remuneration. ADFERENCE can, for example, increase prices and will lower prices if tariff wages, energy costs, or the requirements of the advertising platforms operated for the provision of the ADFERENCE Services change in a way that leads to a change in costs. The remuneration will only be increased by ADFERENCE due to the increase of a specific type of cost if and insofar as there is no compensation through falling costs in other areas. The customer is entitled to prove lower cost increases; §315 BGB remains unaffected.

8.5. In the event of a customer's payment default, ADFERENCE is entitled to block access to the ADFERENCE Service until all due claims from the entire business relationship with the customer, regardless of the legal reason, have been settled by the customer. During the payment default, the customer must pay interest on monetary debts in accordance with the statutory provisions.

8.6. The customer may only set off with claims that have been legally established or are undisputed or assert a right of retention. The customer may only assign claims from this contract to third parties with the written consent of ADFERENCE.

8.7. ADFERENCE reserves the right to charge the customer for costs incurred for chargebacks due to, among other things, expired credit cards, insufficient funds, incorrect bank details, chargebacks initiated by the bank, and similar reasons. Upon request, ADFERENCE will provide proof of the costs incurred.

9. Commencement, Term, and Termination of Contracts

9.1. The contract term for the fee-based use is agreed upon separately in writing in the contractual relationship. This runs until the end of the agreed contract term and is extended by the originally agreed term if it has not been terminated by one of the parties with a notice period of one (1) month to the end of the contract term.

If no separate contract term has been agreed upon for the fee-based use, it runs for one contract year and is extended by another year if it has not been terminated by one of the parties with a notice period of one (1) month to the end of the current contract year.

If additional contractually agreed services were booked in connection with an ADFERENCE Service, these end with the contract term of the ADFERENCE Service.

9.2. The right of both parties to terminate without notice for good cause remains unaffected. A good cause that entitles ADFERENCE to terminate without notice exists, in particular, if the customer is in arrears with more than two months' remuneration.

9.3. If there is a good cause that entitles ADFERENCE to terminate without notice, ADFERENCE is entitled to immediately block the customer's access to the ADFERENCE Service.

9.4. Terminations by the customer can be made in writing or by email to support@adference.com.

9.5. The data generated in ADFERENCE on ADFERENCE servers will be deleted by ADFERENCE no later than 120 days after termination. The customer no longer has access to their ADFERENCE account after termination.

9.6. If the date of the confirmed contract end falls on a Saturday, a Sunday, or a public holiday, the contract ends at the end of the next following working day. This extended period is free of charge for the customer. The ADFERENCE customer agrees that the active ADFERENCE automations and the bidding algorithm will continue to run during this time and will be unlinked/deactivated on the next following working day.

9.7. If ADFERENCE grants the customer a discount on the monthly remuneration upon conclusion of the contract (e.g., when concluding a contract with a minimum term of 12 or 24 months), this granted discount is granted under the expectation and the condition that the minimum contract term is fulfilled. In the event that ADFERENCE is entitled to terminate the contract with the customer for extraordinary reasons or in the event of an amicable premature termination of the contract, ADFERENCE reserves the right to reclaim the total amount of the monthly discount granted from the customer up to the time of the premature termination of the contract.

10. Use and Commercialization of Aggregated Data

ADFERENCE reserves the right to process and commercially use data made available within the scope of using the Amazon Service or via interfaces in an anonymized and aggregated form. This includes, in particular, the improvement and further development of our products and services, the training of models, and the creation and exploitation of data sets. The processing or use of personal data or of data that allows conclusions to be drawn about individual customers or their end customers is excluded. A commissioned data processing does not exist because ADFERENCE does not process personal data on behalf of another company.

11. Data Protection

ADFERENCE and the customer undertake to maintain confidentiality when processing personal data in accordance with Art. 5 Para. 1 of the General Data Protection Regulation (GDPR). ADFERENCE and the customer are prohibited from collecting, processing, disclosing, or otherwise making accessible or using personal data for any purpose other than that required for the fulfillment of the respective task. In principle, the ADFERENCE Services are not designed for the processing of personal data.

The processing of personal data only takes place insofar as this is necessary for the fulfillment of the contract. Processing on behalf of the customer in accordance with Article 28 GDPR does not take place unless it has been expressly agreed upon. If a corresponding agreement becomes necessary, the parties will agree on a separate data processing agreement.

Information on how ADFERENCE otherwise processes personal data, particularly outside the fulfillment of this contract, can be found in the data protection declaration available on the ADFERENCE website in the respective current version.

12. Confidentiality

12.1. “Confidential Information” is all non-public information that is disclosed or made accessible, directly or indirectly, in connection with the contract by one party (“Disclosing Party”) or a company affiliated with it within the meaning of §§15 ff. German Stock Corporation Act (“Affiliated Company”) to the other party (“Receiving Party”) or to an affiliated company of the latter, if it is marked as confidential or if it is to be reasonably considered confidential due to its content or the circumstances. Confidential information includes, in particular, all financial, technical, business, personnel, management, or other information (including trade secrets, records, and know-how). It is irrelevant whether and on which medium the confidential information is embodied; in particular, oral information is also included.

12.2. The parties undertake to keep the other party's confidential information strictly and absolutely secret and to protect it with appropriate technical and organizational precautions. This obligation continues after the termination of the contract.

12.3. Excluded from this obligation is such confidential information that:

a) was verifiably already known to the receiving party at the time of the conclusion of the contract or becomes known thereafter from a third party without violating a confidentiality agreement, legal regulations, or official orders;

b) is publicly known at the time of the conclusion of the contract or is made publicly known thereafter, unless this is due to a violation of this contract;

c) must be disclosed due to legal obligations or by order of a court or an authority. Insofar as permissible and possible, the receiving party obligated to disclose will inform the other party in advance and give it the opportunity to take action against the disclosure.

12.4. The parties will use the confidential information exclusively for the execution of the contract. The receiving party may only disclose the confidential information to the management and such employees, consultants, and other agents of the receiving party (“Representatives”) or a company affiliated with the receiving party or a company involved in another way (“Involved Parties”) who are involved in the examination process or the execution of the contract. Insofar as Representatives or Involved Parties are not subject to a professional or employment confidentiality obligation, these Representatives or Involved Parties must be informed of the confidentiality of the information and, insofar as legally permissible, be obliged to comply with the provisions of this agreement. The respective party is also liable for any violations of this agreement by its Representatives and/or Involved Parties.

13. Reference Designation

ADFERENCE is granted the right to list the customer as a reference at a suitable place on the ADFERENCE website and on other promotional materials. The customer can revoke this consent at any time with effect for the future.

14. Final Provisions

14.1. Contracts between the provider and the customers are governed by the law of the Federal Republic of Germany, with the exclusion of the UN Convention on Contracts for the International Sale of Goods and such provisions that refer to another legal system.

14.2. The conclusion of the contract between the parties requires written form or electronic form with a simple electronic signature. Amendments and supplements to this contract also require written form or electronic form with a simple electronic signature to be legally effective. The parties agree that the written form is not fulfilled by telecommunicative transmission or, in the case of a contract, by a exchange of letters; in the case of the electronic form, the exchange of offer and acceptance is not sufficient. No ancillary agreements have been made.

14.3. The place of performance is Lüneburg.

14.4. The place of jurisdiction for all disputes arising from contractual relationships between the customer and ADFERENCE is Lüneburg.